Plan to recall woman rep in pay row may hit legal snag

The decision by Kiambu voters to initiate a petition to recall Woman Representative Gathoni wa Muchomba may run into headwinds as it might not find favour with the law.Ms Muchomba, who is yet to be sworn in, angered voters by suggesting that she is not content with the proposals by the Salaries and Remuneration Commission to lower the pay of MPs and senators.During an interview on NTV, Ms Muchomba, who garnered 922,829 votes in the election, said she was in support of demands by some MPs who were rejecting any move to lower their salaries.“I want to be paid well, I worked, I fought it out to be a Member of Parliament. I campaigned and used my resources. I want to be paid well. I want to be honoured for who I am and what I have been able to achieve,” she said in the interview, sparking fury among her electorate.

READ: Legislator apologises for opposing salary cuts

RECALLEDTo compound her problems, one of her prominent constituents, President Kenyatta, also dismissed the calls for an increase in salaries for the lawmakers.

Although Ms Muchomba has since apologised, her constituents have been busy collecting signatures in the hope that she may be recalled in the near future.

Ms Muchomba may rest easy as the earliest possible time she can be recalled will be after two years.

However, unlike in the past where Parliament had made it a long-winded procedure for the electorate to recall their elected leader, High Court Judges Kanyi Kimondo, George Odunga and Chacha Mwita in July made the process easier.

This increases chances of a possible successful recall attempt during the term of the 12th Parliament.

UNCONSTITUTIONAL

The petition had been filed by the Katiba Institute, an NGO headed by constitutional law expert Yash Pal Ghai that litigates on governance issues.

The court described as unconstitutional the grounds set by Parliament for the electorate to commence the recall procedure.

It said they were “meaningless and superfluous”.

In its wisdom, Parliament had stated that a member can only be recalled if there is a judgment from the High Court where an MP is said to have violated the provisions of Chapter Six of the Constitution, mismanaged public resources or is convicted of an offence under the law.

The judges also described as unconstitutional a provision that for a voter to initiate recall procedure, he or she must have been registered as one in the area the recall is sought.

REPRIEVE

They also struck out a provision barring anyone who contested in the election from initiating the procedure.

However, the judges gave a reprieve to an MP facing a recall by saying such an individual should not be barred to vie in a subsequent by-election unless it is expressly stated in the law.

“If a member is recalled in circumstances that do not bar him as a candidate, it would be unreasonable to invalidate his candidature. The reason is self-explanatory.

Under Articles 1 and 38 of the Constitution, all sovereign power belongs to the people.

If the voters chose to recall and re-elect the same representative, we must respect their political rights, unless, of course, where the candidate is expressly barred by law from contesting in a subsequent election(s),” said the judges.

EASIER

The judges also knocked out the minimum number of people who can order a recall, thereby creating a lacuna on how many individuals can initiate the procedure.

This can only be cured by legislation by Parliament.

The upshot of all this is that Kiambu residents will have it easier to recall their MP after two years as they do not need a court judgment to initiate the procedure.

Senior counsel Nzamba Kitonga, who was the chairman of the Committee of Experts that put together the Constitution, said the Elections Act provisions were put together by Parliament in a bid to protect members.

UNTENABLE

He said that as things stand, it is not tenable for Kiambu residents to initiate the procedure.

“The recall cannot be effected in respect to Kiambu. It does not even meet the threshold. She has not even been sworn in. Those grounds are flimsy because you cannot suppress the MP, who has rights of expression like anyone else,” he said.

According to the Katiba Institute Parliament had moved to appeal against the judgment.